New South Wales v The Commonwealth
Case
•
[1975] HCA 58
•17 December 1975
No judgment structure available for this case.
HIGH COURT OF AUSTRALIA
Barwick C.J., McTiernan, Gibbs, Stephen, Mason, Jacobs and Murphy JJ.
NEW SOUTH WALES v. THE COMMONWEALTH ;
(1975) 135 CLR 337
17 December 1975
Constitutional Law (Cth)—International Law
Constitutional Law (Cth)—External affairs—Territorial sea—Continental shelf—Sovereignty—Law vesting sovereignty in Commonwealth—Validity—Whether implementing Convention on Territorial Sea and Contiguous Zone and Convention on Continental Shelf—Whether territorial sea external to Australia—Whether colonies had proprietary rights in territorial sea—Whether States now include territorial sea—Effect on colonial boundaries of enactment of the Constitution—The Constitution (63 &64 Vict. c. 12), ss. 51 (xxix.), 122—Seas and Submerged Lands Act 1973 (Cth). International Law—Territorial sea—Continental shelf—Sovereignty—Australia—Whether sovereign rights vested in Commonwealth or States—Whether States have international personality—Convention on Territorial Sea and Contiguous Zone (Geneva 1958)—Convention on Continental Shelf (Geneva 1958).
Decisions
December 17.
The following written judgments were delivered:-
BARWICK C.J. The Seas and Submerged Lands Act 1973 (Cth) ("the Act"), passed by the Australian Parliament, came into operation on the date on which it received the Governor-General's assent, namely, 4th December 1973. The Act has several recitals. They are as follows:
"WHEREAS a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over the territorial sea and the bed and subsoil of the territorial sea, are within the sovereignty of Australia: AND WHEREAS Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone a copy of which in the English language is set out in Schedule 1: AND WHEREAS Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources: AND WHEREAS Australia is a party to the Convention on the Continental Shelf a copy of which in the English language is set out in Schedule 2:"The First Schedule to the Act contains the international Convention on the Territorial Sea and the Contiguous Zone and the Second Schedule contains the international Convention on the Continental Shelf. Each Convention was signed on behalf of Australia on 29th April 1958. Pursuant to Art. 29 of the Convention on the Territorial Sea and the Contiguous Zone, and the deposit of the requisite number of instruments of ratification or accession, that convention came into force on 10th September 1964. Pursuant to Art. 11 of the Convention on the Continental Shelf and the deposit of the requisite number of instruments of ratification or accession, it came into force on 10th June 1964. (at p358)
2. By s. 6, the Act declares and enacts that "the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth". The territorial sea is as it extends from time to time, the Governor-General having power from time to time by proclamation to declare the limits of the territorial sea or of any part thereof not inconsistently with the Territorial Sea Convention. (at p358)
3. The Act, by s. 11, declares and enacts that "the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth". The Governor-General is given power from time to time by proclamation to declare, not inconsistently with the Continental Shelf Convention or other relevant international agreements to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia (s. 12). (at p358)
4. There are three saving clauses of the Act which can conveniently be mentioned at this point. Section 14 saves the rights of the States of Australia in respect of waters of the sea of or within any bay, gulf, estuary, river, creek, inlet, port or harbour which before federation were, and which still remain, within the sovereignty of a State: superincumbent airspace and subjacent seabed and subsoil are included in the saving. (at p358)
5. Section 15 excepts from Australian sovereignty declared by the Act wharves, jetties, piers, breakwaters, buildings, platforms, pipelines, lighthouses, beacons, navigational aids, buoys, cables or other structures or works. (at p358)
6. Section 16 provides that the Act does not limit or exclude (a) the operation of any law of the Commonwealth or of a Territory in force at the date of the commencement of the Act or coming into force thereafter, and (b) the operation of any law of a State in force at the date of such commencement or coming into force thereafter, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the Act. (at p359)
7. No proclamation or other actions have been made or taken under the Act. (at p359)
8. All States of Australia, namely, New South Wales, Tasmania, Western Australia, South Australia, Victoria and Queensland, commenced actions against the Commonwealth by statement of claim seeking declarations that the Act is wholly or partly invalid. In some cases, alternative declarations that the Act is invalid in respect of certain aspects of its operation were sought. The Commonwealth, by statement of defence, denies that the facts described in the statements of claim entitle the plaintiffs to any of the relief claimed and says that the Act is within power and valid. (at p359)
9. Pursuant to s. 18 of the Judiciary Act, 1903 (Cth), as amended, Menzies J. directed the question, common to all the actions, whether or not the Act is a valid law of the Commonwealth to be argued before a Full Court upon many volumes of material entitled "Seas and Submerged Lands Act Litigation Joint Material", which brought together documents which all parties had agreed should be capable of being used by any of the parties in the argument of the question. The documents ranged widely but due to the attitudes adopted by the parties, and the conclusions which I have reached, there is no need for me to discuss the relevancy or irrelevancy of any of this material. (at p359)
10. The issues which arose from these pleadings and in the argument before the Court were, first, is the Act a valid exercise of the legislative power given to the Parliament by s. 51, particularly by par. (xxix.) and by s. 122 of the Constitution; secondly, did the States, by reason of settlement as a colony of the Imperial Crown or by reason of the grant of self-government, have in 1900 sovereign or proprietary rights in or legislative power over (a) the territorial sea or (b) the continental shelf; thirdly, did either the enactment of the Australian Constitution or the emergence of Australia as a nation state, vest in Australia either or both the territorial sea and the continental shelf? (at p359)
11. The relationship of these issues each to other may not readily appear. But the States sought to invalidate the Act by, amongst other things, their claim to ownership or legislative power over the marginal seas adjacent to their coasts to the extent seaward of three miles, with the soil subjacent thereto and the airspace superincumbent thereupon and over the continental shelf and incline. Hence the second issue. The defendant Commonwealth, by way of reply to such a claim of the States, asserted that if prior to the enactment of the Constitution the States had such ownership or legislative power, it passed to the Commonwealth at the inception of the Constitution or at latest on Australia becoming an independent nation. (at p360)
12. I shall deal with these issues and the submissions made in respect of them separately in the above order. (at p360)
13. External affairs is a larger expression than foreign affairs, though the expressions are often used interchangeably. In my opinion, the description "external affairs" covers a larger area of legislative power than would the description "foreign affairs". The description of the subject matter of the power and the preference for external affairs rather than foreign affairs in the Constitution was doubtless designed to include within the subject matter inter-colonial matters which in Imperial days may not have been regarded as foreign affairs. But the motive of the choice of the description will not govern the content of the legislative power. That is not limited, in my opinion, to the making of arrangements with other nations or the implementation of such international arrangements as may properly be made in Australia's interest with other nations, though doubtless these may be the most frequent manifestations of the exercise of the power. The power extends, in my opinion, to any affair which in its nature is external to the continent of Australia and the island of Tasmania subject always to the Constitution as a whole. For this purpose, the continent of Australia and the island of Tasmania are, in my opinion, bounded by the low-water mark on the coasts. On this question, I have expressed myself in Reg. v. Bull (1974) 131 CLR 203, at p 219 . I agree with the Supreme Court of the United States in thinking that, in this area of discourse, "once the low-water mark is passed, the international domain is reached": United States v. Texas (1950) 339 US 707, at p 719 (94 Law Ed 1221, at p 1228) . (at p360)
14. Whether or not the legislative power with respect to external affairs is affected by the grant by the Constitution of legislative power with respect to other subject matters need not be decided in this case: nor is it necessary to attempt to define what is relevantly an affair. But it is important to remember that the power is both an independent power and a plenary power. (at p360)
15. I mention but to dismiss it a submission based on the plurality of the expression "external affairs" which would deny that an external affair, because of its singularity, could fall within the power. There is, in my opinion, no substance whatever in the submission. (at p361)
16. In my opinion, the Parliament has power to place Australia in a position to enjoy and exercise the terms of these Conventions. The sovereignty and sovereign rights of which the Conventions speak are available to Australia as a nation state without any executive or legislative act on its part. But the Act provides for the exercise of that sovereignty and those sovereign rights and authorizes the implementation of the Conventions in material respects. I shall state briefly my reason for that conclusion. (at p361)
17. The matters dealt with in and by these Conventions are essentially matters of international law. The rights of which they speak are conferred on the nation state, which unquestionably is Australia and not the constituent States whether regarded individually or collectively. The assertion of the rights the Conventions confer on the nation state depends on international acceptance and mutual concession. Questions concerning those rights have been settled by international Conventions. Further, each of the Conventions involves obligations to be performed by the nation state, e.g. the obligation to afford innocent passage in the Convention on the Territorial Sea and the obligation not unjustifiably to interfere with navigation, fishing and the conservation of the living resources of the sea in the Convention on the Continental Shelf. Only the nation state could shoulder and perform these obligations which in their nature and origins are obligations between nation states. Whether or not these Conventions should be implemented by Australia is itself, in my opinion, a question as to an external affair and within the competence of the Parliament. (at p361)
18. In amplification of these conclusions it is important to observe and bear in mind that the concept of territorial waters or of a territorial sea derives entirely from international law, based on international comity. It is not a concept which, in my opinion, has any place in the domestic or municipal law of a country. Legislatures, with such plenary power as justifies the making of laws having an operation beyond the territory in respect of which such power exists, are not confined to the making of laws which operate only in the marginal seas. The test of validity of a law having an extra-territorial operation is its relationship to the peace, order and good government of the territory for the government of which the legislature has been constituted. If such a law did not so touch and concern that territory it would not be valid simply because it operated in the marginal seas. It would not achieve validity by its operation in the territorial sea. But if the legislature was the legislature of a nation state having the benefit of the relevant Convention, it could make laws about and operating in the territorial seas. (at p362)
19. The territorial sea is a part of the high seas which washes the shores of a nation state, including the shores of its dependent territories, in and over which other nation states according to international law concede to the nation state a right of dominion in respect of matters of high concern to the nation state as, for example, defence, quarantine and security generally, whilst reserving to the members of the international community certain specified rights. I assume for the purpose of these reasons, without expressing any opinion thereon, that the marginal seas surrounding islands owned by a nation state, whether as metropolitan territory or as a colony or part of a colony, are part of the territorial waters of the nation state. (at p362)
20. The width of this area of the high seas over which this dominion is conceded has not been definitively fixed by international law beyond apparently the general acceptance that the aforetime range of cannon shot from the land would mark the outer limits of the least area of water included in the territorial sea. The adoption of this customary measure was itself dictated by considerations of defence and security. (at p362)
21. When a nation state has dependent territories, international law concedes to the nation state the same dominion over an area of the high seas which washes the shores of its territories as it does in relation to waters which wash the territorial margins of the homeland. Consequently, it would be quite proper in the days of the British Empire to regard the Imperial territorial seas as including the portions of the high seas which washed the shores of Imperial colonial territories. It was in that sense that the Territorial Waters Jurisdiction Act (Imp.) 1878 was conceived and enacted. (at p362)
22. If one had in the days of Empire to describe the Imperial territorial waters which were adjacent to an Imperial colony, one would not unnaturally speak of the waters as the colonial territorial waters, not in the sense that the colony itself had dominion over those waters but in the sense that it was a colony with a littoral thus attracting to Great Britain as the nation state the international concession of dominion over them: the expression described the location of those territorial waters which washed the shores of the Imperial colonial territory. The dominion over those waters was, in my opinion, exercisable in the case of the British Empire by the Imperial executive or Imperial legislature. (at p363)
23. The powers conceded internationally to the nations with a littoral were so extensive, that is to say, the dominion over territorial waters or seas was so large, that it was convenient to refer to the outer margin of the territorial waters as the territorial limit of the nation. With this I dealt in my reasons for judgment in Bonser v. La Macchia (1969) 122 CLR 177 . But the international concession was not that the territory of the nation, in a proprietary or physical sense, was enlarged to include the area of water in the territorial sea or the area of subjacent soil. Indeed, the very description "territorial waters" emphasizes, in my opinion, that they are waters which wash the shores of the territory of the nation state, otherwise regarded as ending at the margin of the land. (at p363)
24. It is true that Lord Macnaghten in Carr v. Fracis Times &Co. (1902) AC 176, at p 183 said that the territorial waters of the independent state of Muscat were "for this purpose, as much a part of the Sultan's dominions as the land over which he exercises absolute and unquestioned sway". But it is clear that his Lordship meant no more, in qualifying his statement with the expression "for this purpose", than that in relation to the authority given by the Sultan to the British ship to do in the territorial waters of Muscat the particular acts in question, the Sultan's edict was as effective as it would have been if made as to comparable acts on the land of Muscat. Clearly, the giving of the authority was within the "sovereignty" or dominion, however the matter be regarded, of the Sultan in the territorial waters of Muscat. In my opinion, Lord Macnaghten's expression does not support the submission that territorial waters are an extension of the territory of the coastal state. (at p363)
25. Thus the very existence of a territorial sea depends on international agreement, established in earlier times by custom or practice amongst nations or a significant number and range of them, but now most definitively by international convention. The first such Convention is set out in the First Schedule to the Act. The Convention concedes to the nation state with a littoral, a "coastal State", to use the terms of the Convention, what it describes as sovereignty over the territorial sea, its bed and subsoil and superjacent airspace. This international concession extending to the seabed and airspace perhaps surpasses any dominion theretofore accorded by custom or practice between nations. But however that may be, the conceded sovereignty undoubtedly now depends upon the terms of the Convention. The Act, in my opinion, uses the word "sovereignty" in the same sense as it is used in the Convention. The Act, in my opinion, does not purport to take any greater power over the subject matter of the Conventions than they confer on the coastal state. Sovereignty is a word, the meaning of which may vary according to context. The same may be said of "sovereign rights". I find no need in order to dispose of this issue to expound upon the meaning either in the context of these conventions and as used in the Act. At the least, sovereignty includes the dominion which was earlier conceded by international custom: it may possibly enlarge it. Sovereign rights at least imply exclusive and paramount rights to exploit together with all the power necessary to secure the principal rights. But the important thing is that whatever the extent of the power or jurisdiction sovereignty or sovereign rights embraces, that power, jurisdiction or authority is conceded internationally to the nation state and depends on international mutuality. (at p364)
26. Consequently, the acceptance of the concession and the assertion of the internationally conceded rights are, in my opinion, pre-eminently external affairs. I have no doubt that an Act of the Parliament which accepts that sovereignty and places itself in a position to assert it and subject itself to its obligations is an Act with respect to external affairs within the meaning of the Australian Constitution. The Act selects the organ of government, namely the Executive, to exercise the sovereignty over the territorial sea and the sovereign rights over the continental shelf which the Conventions make available. It also empowers the Executive to implement the conventions in certain respects, ss. 7 and 12. The Act is, in this respect, a valid exercise of legislative power with respect to external affairs. (at p364)
27. Objection was raised, however, to the provision of the Act vesting the sovereignty in the Crown in right of the Commonwealth. It was said that this amounted to the creation in the Crown of a power which could not constitutionally be so vested. I am unable to accept this proposition. The Crown is the appropriate repository of international rights and obligations. In right of the Commonwealth, the Crown represents Australia internationally. Its conduct in that connexion is determined by the advice of the Executive Council. Sections 62 and 64 of the Constitution introduced responsible government: on the one hand, leaving aside most exceptional circumstances, the Crown acts on the advice of its Ministers and, on the other hand, the Ministers are responsible to the Parliament for the actions of the Crown. In the long run the Parliament, comprising the House of Representatives and the Senate, is in a position to control the Executive Government. In my opinion, the sovereignty and sovereign rights conceded to the nation by these conventions are properly and validly vested in and made exercisable by the Crown in right of the Commonwealth. The Act does not purport to give legislative power to the Crown: it does not purport to give to the Crown in right of the Commonwealth any right or power in relation to the "internal" as distinct from external affairs of the Commonwealth than the Crown already has under the Constitution. If it should become necessary for the purpose of the convention to make laws operating within Australia, it would be necessary for the Parliament to make such laws: the validity of any such law would depend on its substantive relationship to external affairs, in this case, the relevant convention. But it is quite unnecessary for the disposal of these cases to explore the possible range of laws which could be so made. (at p365)
28. In R. v. Burgess; Ex parte Henry (1936) 55 CLR 608 , the Court had to consider the validity of regulations made under an Act of the Parliament which authorized, amongst other things, the making of regulations for the purpose of carrying out and giving effect to an international convention for the regulation of aerial navigation. The Act in that respect was held to be a valid exercise of the power granted by s. 51 (xxix.), "external affairs". The ambit of the regulations made under the Act was examined to determine whether they were in truth regulations to carry out the terms of the convention. Because the majority of the Court was of opinion that they did not, the regulations were held invalid. But it is clear from the reasons for judgment that if the regulations had been apt to carry out the convention, the fact that they operated upon matters which otherwise did not fall within the power of the Parliament would not have invalidated them. Being laws validly made under the plenary power given by s. 51 (xxix.), they would not have needed any other power to support them. Being in themselves valid, they could operate in the States in respect of matters over which the Parliament otherwise had no legislative power: further, being valid, they would supersede any inconsistent law of a State. So it would be in relation to laws made implementing these treaties. The ambit of the power with respect to external affairs cannot be restrained by any reserved powers doctrine. However, no such problem directly arises in this case, though the plenary nature of the independent legislative power with respect to external affairs has some relevance to the later issues in the case. (at p366)
29. For the reasons I have given, it is my opinion that the Act is a valid law with respect to external affairs. (at p366)
30. Some reference was made in argument to s. 122 as a source of power to support the Act. In the view I take of the width of the power with respect to external affairs, I find no need to seek reliance in s. 122. Elsewhere I have expressed the view that the Imperial territorial waters in due time passed to Australia as the nation state and that in truth no territory of the Commonwealth ever had territorial waters of its own: see Bonser v. La Macchia (1969) 122 CLR, at pp 191-192 . But, upon a territory being given its independence of Australia and ceasing to be a dependent territory, the marginal seas become, by virtue of that very independent national status, the territorial seas of the new nation state. (at p366)
31. I turn now to the second issue. In this connexion, it is submitted that the Australian colonies in 1900 had proprietary rights in the subsoil of the territorial sea washing their shores and dominion over those seas as in international law. The submission goes so far as to assert that the boundaries of each colony were to be found at the limit of three nautical miles from their respective coasts and that the waters and their subsoil were part of the waste lands of the Crown. As an alternative, it was submitted that legislative and executive authority was vested in the legislature and government of each colony over the territorial seas and the subjacent soil as part of the waste lands of the Crown, at least from the time a colony was granted self-government. It was said that the territorial seas were part of the "King's waste" and were included in the grant of legislative power at the time of the institution of self-government in the colonies. (at p366)
32. As a result of these assertions, it was submitted that the continental shelf and the territorial seas and subsoil were vested in the colonies in 1900, either by original settlement or upon the grant of self-government. (at p366)
33. Because of these submissions, it was finally submitted that ss. 106-107 of the Constitution maintained these property rights and legislative power in the States so that the Parliament could not by the exercise of its legislative power with respect to external affairs trench upon such properties and rights. (at p366)
34. To some extent I dealt with the matters thus raised in my reasons for judgment in Bonser v. La Macchia (1969) 122 CLR 177 . Having now heard full argument addressed to this issue, and having considered the many documents tendered in the case and the various decisions to which we were referred, I am confirmed in the opinion which I then expressed, namely, that the colonies in 1900 had neither proprietary rights in, nor legislative power over, the territorial waters which washed their shores, nor in or over the subjacent soil or superjacent airspace except in so far as they had legislative power to enact extra-territorially operating laws. Nor did they have any rights in the continental shelf and incline. (at p367)
35. The question in this connexion is not what rights the Imperial Crown had, or asserted itself to have, in areas of the sea not within the jaws of the land. Nor is it what rights were claimed on behalf of Scotland in areas of the sea, or of arms of it. Due to the undoubted sovereignty of the United Kingdom it was free for its own purposes to make and enforce within its own territory any claim to any part of the high seas. The remarks of Lush J. in Reg. v. Keyn (1876) 2 Ex D 63, at pp 238-239 , are significant in this connexion. He said that, though at common law the realm ended at low-water mark and though the jurisdiction of the Admiral did not extend to acts on a foreign ship on the high seas, albeit within a marine league of the shore, the Parliament could alter that situation if it so desired. But of course, whilst for its own domestic purposes it could pass without restriction laws operating beyond the domain, only such of those laws as operated within the area conceded to the nation by the comity of nations could have validity at international law. (at p367)
36. A great deal of time and effort was expended in the preparation for and in the hearing of the cases in an endeavour to establish that Great Britain claimed, and it was submitted rightly claimed, vast areas of sea and seabed as part of the King's realm or of the King's waste. But there is no need to express any definitive opinion on these submissions in order to decide the present case. One can say in passing that it is quite apparent that views on the question of what, for domestic purposes, Great Britain properly claimed have varied from time to time and at best any conclusion on that question may be fraught with considerable uncertainty. But, in my opinion, the question of what Great Britain or the Imperial Crown claimed to own or to control is not really relevant to the question which lies at the root of the solution of the problem which is raised by this second issue. Suffice it to say that the Imperial Crown, as representing the Empire, had at all relevant times dominion according to international law over the Imperial territorial seas. Had the Imperial authorities been minded to do so, they could have placed such part of these territorial waters as washed the shores of a colony within the control of the government of that colony as representing the Imperial executive and legislature. But Great Britain as the nation state must have remained responsible internationally for the performance of the obligations associated with the territorial sea. The Imperial Parliament could have authorized the executive to place the colonial territorial seas under the control of the appropriate colony: but no statute of the Imperial Parliament did so. (at p368)
37. The relevant question under this issue, therefore, is whether, in establishing a colony and later in giving the colony self-government, the Imperial Crown or the Imperial Parliament vested in the colony either proprietary rights or legislative power in the specific areas of sea and subjacent soil in question in these cases. (at p368)
38. What was involved in the process of colonization in the case of the Australian colonies was the placing under delegated government defined areas of land. No alienation of property or of rights was involved. Nothing in the least comparable to the consequences of a conveyance of land occurred upon or by the act of establishing a colony. No ad medium filum analogy is available. The colonies were colonies in the classical sense of that word. They were settlements of British people. They did not involve any conquest; nor the displacement of any ruler or government in charge of the land to be settled. (at p368)
39. In the inception of the first Australian colony, a Governor with extensive but defined powers, was commissioned to govern a definite area of land. Examination of that commission and of the instruments setting up the other colonies, or severing off parts of the original colony, amply supports that conclusion. My brother Jacobs, whose reasons I have been able to read, has amply examined those instruments. No power over Imperial territorial waters was granted expressly or impliedly. The colonists inherited the common law: but it operated only in the realm which ended at low-water mark. This was decided in Reg. v. Keyn (1876) 2 Ex D 63 , a decision with which I respectfully agree. See also Harris v. Owners of Franconia (1877) LR 2 CPD 173 and Blackpool Pier Co. Ltd. v. Fylde Union (1877) 36 LT 251 . Thus, property in and power over the territorial seas could not have come by the common law. As I have already mentioned, no statute and no executive act authorized by statute conferred upon the colonies property in or legislative power over the territorial seas. Later history in connexion with the control of the waste lands of the Crown in the colonies makes this clear. (at p369)
40. Imperial policy, however, in the light of the experience with the American colonies, favoured in relation to the Australian colonies, first, the creation of small rather than large land holdings - a policy sharply reversed during the governorship of Lachlan Macquarie, and, secondly, progressive increase of legislative power in representative bodies in the colonies. Each policy was designed to avoid a repetition of the American rebellion. Thus, the Imperial government progressively allowed the Governors, and subsequently the representative assemblies, to make provisions operating outside the precise territorial limits of the land in relation to matters of purely colonial concern being usually matters intimately connected with the welfare of the colony and of the colonists. But the control of the disposal of the unalienated lands in the colonies was long retained by the Imperial government for Imperial purposes. The Imperial authorities, apart from any other matter of policy, desired to use part of the proceeds of the disposal of the waste lands to assist the financing of migration from England to the colonies. Indeed, control of the unalienated land may be said to have been wrested by the colonists from the Imperial authorities by continued argument and protestation. However, in July 1855, nearly seventy years after the first settlement, the Imperial Parliament passed "an Act to repeal the Acts of Parliament now in force respecting the Disposal of the Waste Lands of the Crown in Her Majesty's Australian Colonies" which placed, or enabled the placement of, the control of the disposal of such waste lands in the hands of the legislatures of the colonies. It is clear to demonstration that the waste lands only included the land within the colonies and did not include any part of the high seas or subjacent soil. In earlier legislation relating to the waste lands, viz. 5 &6 Vict. c. 36, passed in June 1842, it is made abundantly clear that only land is included in the description "waste lands". In authorized sales of such lands, there were to be three classes: town lots, suburban lots and country lots, these classes fully exhausting what was included in the description "waste lands". The Act of 1842 was repealed, along with other Acts on the subject, by the Act of 1855. There can be no doubt that the description "waste lands" in this Act was the same as that in the earlier Acts. (at p370)
41. Not only was the territorial sea or its subjacent soil not part of the waste lands of the Crown, the disposal of which was thus placed by the Imperial legislation under the control of the colonial governments, but the fact of that legislation clearly indicates that the legislative control of the territorial seas and subjacent soil could not have been given to the colonial governments at any earlier time. To have given proprietary or legislative rights over part of the sea and seabed whilst denying any right or power in the disposal of the land would have been absurd. That the Imperial authorities had international obligations in respect of the territorial waters makes such a course more than unlikely. (at p370)
42. Thus the history of the contest in Australia as to the power of disposal of the waste lands of the Crown, lands which did not include any part of the high seas, tends to deny that either by original settlement or by any other act of the Imperial authorities, the territorial seas and subjacent soil were placed or brought within the territory over which powers of government were given by that settlement. The Crown Lands Acts, e.g. of New South Wales and of Tasmania, made it quite clear that the Crown lands, the substitute expression for the waste lands, included and subjected to the statutory requirements only land above high water. (at p370)
43. But it is said that on the grant of self-government to a colony, legislative power over the territorial sea and subjacent soil - and, indeed, over the continental shelf and incline - was granted to the colony. In so far as the concurrence of the operation of the Waste Lands Act with the grant of self-government is concerned, what I have already written suffices to answer the proposition. (at p370)
44. However, and in any case, there is nothing in the Constitution granted to any of the colonies which supports the view that thereby the boundaries, or the territorial description, of the colony were or was enlarged. Local autonomy replaced representative government of limited capacity; but the territorial description remained. Of course, thereafter the Crown accepted the advice of colonial Ministers; but still only in relation to colonial affairs, of which, in my opinion, the control of the territorial seas and subjacent soil did not form part. (at p370)
45. A large number of opinions of law officers of the Imperial Crown were pressed upon us in an endeavour to establish the proposition that the colonies possessed, as it were in their own right, territorial seas. Of course, however persuasive in some circumstances, and however eminent such law officers were or proved to be, their opinions are not precedents nor, in any sense, binding. Their opinions speak of the territorial seas of the colony, a description which, though involving a degree of ambiguity, I am prepared to assume meant, without being convinced that it did mean, that such seas were under the control of the colony. But I have no doubt that these law officers, who did not have to put their minds to the question now before this Court, could quite easily speak of the territorial seas of the colony and conclude that a law was good because, though plainly connected with the colony's affairs, it operated in the territorial sea. Yet it seems to me that if they meant that such seas were either colonial "property" or under colonial dominion, they were under a basic misconception. The territorial seas in themselves were not, in my opinion, source or subject of colonial power or authority. The colonial laws which these officers supported in their opinions all touched and concerned the colony and its welfare and in later times would be accepted as valid extra-territorially operating laws. Further, the Imperial colonial policies of the times, to which I have already made reference, need to be borne in mind in reading and evaluating these opinions. I am unable to give definitive weight to these various opinions of Imperial law officers to which we have been referred. (at p371)
46. For reasons which I expressed in Bonser v. La Macchia (1969) 122 CLR 177 and in Reg. v. Bull (1974) 131 CLR, at p 219 , and in what I have so far written in these cases, I am of opinion that low water on the coasts of the colonies formed the relevant part of the boundary of each - islands specifically made part of a colony excepted - and that no colony in 1900 had obtained any proprietary or legislative or other rights over the territorial seas or the subjacent soil. These and their control as such remained with the Imperial Government. Such territorial seas as washed the shores of islands forming part of the colony are, in my opinion, in the same position as the territorial waters washing the shores of the mainland of the colony. (at p371)
47. The third issue might properly be said not to arise if what I have already written is acceptable. But I propose to express myself about it, as, in my opinion, it does provide an opportunity of disposing of these cases upon grounds essentially involved in the creation of a federation such as that for which the Australian Constitution provides. (at p372)
48. In dealing with the preceding issue, I have concluded that in 1900 none of the colonies had proprietary rights in the territorial sea, its subjacent soil or superjacent airspace or in the continental shelf and incline; and that none of them had legislative power over any of those items. However, for the purpose of discussing this third issue, I assume that, contrary to my expressed view, the Australian colonies did have such rights and such legislative power. Both must have been derived from the Imperial Parliament or executive and both were subject to the power of the Imperial Parliament to withdraw them and vest them elsewhere. (at p372)
49. The Australian Constitution was an Act of the Imperial Parliament. Covering cl. 9 gave effect to the agreement of the people of the Australian colonies to unite in one indissoluble union. It conformed to the wishes of those people by enacting a federal constitution. A new colonial polity was brought into existence. There was no statement of the territory of the new entity, the Commonwealth of Australia. But it is evident that it was the sum of the colonial territory which had been placed under government by the Imperial authorities, with a territorial boundary ending at low-water mark. On the passage of the Imperial Act, those colonies ceased to be such and became States forming part of the new Commonwealth. As States, they owe their existence to the Constitution which, by ss. 106 and 107, provides their constitutions and powers referentially to the constitutions and powers which the former colonies enjoyed, including the power of alteration of those constitutions. Those constitutions and powers were to continue by virtue of the Constitution of the Commonwealth. But those constitutions and the powers of the States were subjected to the Australian Constitution. They were not the same as they had been before federation. The constitutions were continued "subject to this Constitution". The federal nature of the Constitution is seen in the distribution of constitutional power between the new Commonwealth and its constituent States, specific legislative topics being assigned to the Commonwealth and the residue to the States, paramountcy being given to Commonwealth laws where inconsistency with State laws exists. That residue is only discoverable when the full extent of Commonwealth power has been elucidated. (at p372)
50. As already observed, power with respect to external affairs was assigned to the Commonwealth. That power at the very least included all matters of international concern. As I have already said, "once low-water mark is passed the international domain is reached" (1975) 133 CLR 337, at p 360; (1950) 339 US, at p 719 (94 Law Ed, at p 1228) . (at p373)
51. Whilst the power with respect to external affairs is not expressed to be a power exclusively vested in the Commonwealth, it must necessarily of its nature be so as to international relations and affairs. Only the Commonwealth has international status. The colonies never were and the States are not international persons. (at p373)
52. Whilst the new Commonwealth was upon its creation the Australian colony within the Empire, the grant of the power with respect to external affairs was a clear recognition, not merely that, by uniting, the people of Australia were moving towards nationhood, but that it was the Commonwealth which would in due course become the nation state, internationally recognized as such and independent. The progression from colony to independent nation was an inevitable progression, clearly adumbrated by the grant of such powers as the power with respect to defence and external affairs. Section 61, in enabling the Governor-General as in truth a Viceroy to exercise the executive power of the Commonwealth, underlines the prospect of independent nationhood which the enactment of the Constitution provided. That prospect in due course matured, aided in that behalf by the Balfour Declaration and the Statute of Westminster and its adoption. (at p373)
53. A consequence of creation of the Commonwealth under the Constitution and the grant of the power with respect to external affairs was, in my opinion, to vest in the Commonwealth any proprietary rights and legislative power which the colonies might have had in or in relation to the territorial sea, seabed and airspace and continental shelf and incline. Proprietary rights and legislative powers in these matters of international concern would then coalesce and unite in the nation. That, in my opinion, was the intendment of the Constitution. It is far easier to conclude that the Act of the Imperial Parliament setting up the federal Constitution intended to vest such matters of international consequence in the new Commonwealth, withdrawing them from the former colonies, than it was to decide that when an American State, already an independent nation in possession of international rights, entered the Union, these rights became vested in the United States. Yet that is received doctrine in the United States expressed in decisions which have recently been affirmed: see United States v. California (1947) 332 US 19 (91 Law Ed 1889) ; United States v. Texas (1950) 339 US 707 (94 Law Ed 1221) ; United States v. Louisiana (1950) 339 US 699 (94 Law Ed 1216) and United States v. Maine (1975) 420 US 515 (43 Law Ed 2d 363) . The Supreme Court's reasons were applicable to the circumstances of the States originally entering the Union. These were then independent nation states. Yet without so clear an indication as the grant of the power with respect to external affairs, those States did not retain any rights or legislative power over the territorial sea, subsoil, etc. Later entrants to the Union, coming in on an "equal footing", were in the same situation. (at p374)
54. This result conforms, in my opinion, to an essential feature of a federation, namely, that it is the nation and not the integers of the federation which must have the power to protect and control as a national function the area of the marginal seas, the seabed and airspace and the continental shelf and incline. This has been decided by the Supreme Courts of the United States and of Canada: see above citations and Reference re Ownership of Offshore Mineral Rights (1967) SCR 792; (1967) 65 DLR (2d) 353 . I am satisfied with the reasons given by those Courts for their conclusions. The Canadian Supreme Court reached its conclusion after a close examination of the case law. I do not disagree with anything that is said in the Supreme Court's judgment about that law, though for my part I have found it unnecessary to deal with it in these my reasons. However, the Supreme Court's conclusion depends in no small degree upon the fact of Canada's independent nationhood and its recognition as such by the nations of the world. Appropriately, it is concluded that such international rights and obligations as derive from the Convention on the Territorial Sea devolve on Canada and not on any province of the federation. I can find no reason to differentiate in relevant respects the circumstances of this federation from those of the other great federations, except to say that the result of the cases to which I have referred more obviously flows in the case of our Constitution. (at p374)
55. It is my opinion, therefore, that upon the enactment of the Constitution, any rights or powers which the former colonies might have had in the territorial sea, seabed and airspace or in the continental shelf and incline became vested in the Commonwealth. The emergence of Australia as an independent nation state confirmed this situation. (at p375)
56. Therefore, however the matter be viewed, in my opinion, the Act is valid in enacting the sovereignty and sovereign rights in respect of the territorial sea and contiguous zone and of the continental shelf for which the respective Conventions provide. That sovereignty and those sovereign rights are exercisable in and in respect of the territorial sea and the continental shelf. The Act, in my opinion, validly vests that sovereignty and these sovereign rights in the Crown in right of the Commonwealth but any Act or law operating within Australia to implement either of those Conventions or the powers they give must be itself a valid law of the Commonwealth. But if there is such a law, it may operate on matters and things which otherwise could not be the subject of a law of the Parliament. (at p375)
57. I would dismiss all actions. (at p375)
McTIERNAN J. The question in these proceedings for determination by the Full Court is whether the Seas and Submerged Lands Act 1973 is a valid law. (at p375)
2. The seas and submerged lands are not within Australia's land territory or its inland waters. The Act presumes that a belt of sea adjacent to the coast of Australia and Tasmania is a territorial sea for the purposes of the international Convention on the Territorial Sea and Contiguous Zone and that the seabed and subsoil of submarine areas adjacent to the coast, but outside the area of the territorial sea of Australia, is a continental shelf for the purposes of the international Convention on the Continental Shelf. (at p375)
3. Australia is a state in the eye of international law and being a coastal state and a party to each of these Conventions it was its right and duty to legislate so as to receive these articles into Australian municipal law. The Parliament did this by embodying in the Act under consideration, a schedule setting out verbatim the articles of the former Convention and a schedule setting out verbatim the articles of the latter Convention. Each schedule is part of the Act and of the enactment: Craies on Statute Law, 7th ed. (1971), pp. 224-225. (at p375)
4. The Act implements the stipulations in the Convention on the Territorial Sea as to the limits thereof (ss. 7-9), and the stipulations in the Convention on the Continental Shelf as to the limits thereof. (at p375)
5. The long title of the Act indicates that the subject of the Act is sovereignty in respect of regions beyond Australia's territorial jurisdiction. (at p376)
6. The preamble of the Act recites that the territorial sea of Australia, the airspace over it and the soil beneath it are "within the sovereignty of Australia". There is also a recital about the continental shelf. This is:
"AND WHEREAS Australia as a coastal state has sovereign rights in respect of the continental shelf (that is to say, the sea-bed and subsoil of certain submarine areas adjacent to its coast but outside the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources:" (at p376)The object of each section is, in my opinion, to give legal efficacy to the rules of the Convention to which it relates. In effect each section authorizes the Executive Government of the Commonwealth to administer the rules, to fulfil the duties of Australia as a coastal state under the rules, and to exercise the rights given by the rules to a coastal state. Section 11 in particular authorizes the Executive Government of the Commonwealth to exercise the sovereign rights of Australia, in its capacity as a coastal state, which are mentioned in the Convention on the Continental Shelf. The rules and the duties and rights of Australia under the rules are external affairs from Australia's standpoint. The Parliament has legislated in this Act to incorporate them verbatim in the Act, and the Act makes no addition to or omission from them. The rules of international law are matters that concern the Crown and fall within its prerogative in relation to foreign affairs. This prerogative could not be used in any way that would conflict with the articles of either of these international Conventions if validly carried into effect by this Act. The power to make laws with respect to external affairs authorized Parliament to incorporate the articles in the Act, thus giving to them the force of laws of the Commonwealth. In R. v. Burgess; Ex parte Henry (1936) 55 CLR 608, at p 644 , Latham C.J. said that s. 51 (xxix.) of the Constitution gave Australia "full control of her external affairs"... and ... "power to legislate to give effect to international obligations binding the Commonwealth or to protect national rights internationally obtained by the Commonwealth whenever legislation was necessary or deemed to be desirable for this purpose". In the same case Latham C.J. said, "In fact other countries deal with Australia and not with the States of the Commonwealth and this practice follows the evident intention of the Constitution" (1937) 55 CLR, at p 645 . (at p378)
7. The territorial sea and its soil (mare et solum) and the continental shelf (solum) are in an area proper for the operation of rules of international law. (at p376)
8. As regards "sovereignty" Wheaton (Elements of International Law, English ed. (1878), pp. 28-29) said:
"Sovereignty is the supreme power by which any State is
governed. This supreme power may be exercised either internally or externally. Internal sovereignty is that which is inherent in the people of any State, or vested in its ruler, by its municipal constitution or fundamental laws. This is the object of what has been called internal public laws, droit public interne, but which may more properly be termed constitutional law. External sovereignty consists in the independence of one political society, in respect to all other political societies. It is by the exercise of this branch of sovereignty that the international relations of one political society are maintained, in peace and in war, with all other political societies. The law by which it is regulated has, therefore, been called external public law, droit public externe, but may more properly be termed international law." (at p376)
9. The controversial sections of the Act are ss. 6, 10 and 11. Each is in form, a declaratory provision. The presumption against giving an Act by construction a restrospective operation is not applicable to a declaratory Act: Craies on Statute Law, 7th ed. (1971), pp. 58, 395. That a retrospective operation to 1st January 1901 is intended appears from par. (a) of s. 14, a saving clause of the Act. (at p376)
10. The preamble provides an explanation of the terms used in ss. 6, 10 and 11. (at p376)
11. The words of the sections are as follows: "6. It is by this Act declared and enacted that the sovereignty
in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth. ... 10. It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the seabed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth. 11. It is by this Act declared and enacted that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth."
12. The States dispute that at the establishment of the Commonwealth the sovereignty over the territorial sea of Australia did arise in the Crown in the right of the Commonwealth, as the Act purports to declare. The States claim that, as colonies, the dominion of each of them over its territorial waters was established by international law, and, broadly, the dominion extended from low-water mark a marine league outward to the open sea. This means that the sea, the soil beneath it within that limit, and airspace over it was for all purposes part of a colony's territory. (at p378)
13. In Reg. v. Keyn (1867) 2 Ex D 63 , Cockburn C.J. held, in effect, that English law had never recognized that the English state had a general dominion over territorial waters; that, except for special purposes defined by statute, it held such waters to be part of the high seas. The judgment of Cockburn C.J. and of the majority is an answer to the claim that any colony had been invested by Imperial authority with territorial jurisdiction extending over territorial waters. (at p378)
14. The boundary limits of the colonies, read in the course of the argument, do not satisfy me that the boundary of any colony was set in the high seas. (at p378)
15. The sovereignty to which the Act relates is over regions which were not land territory or internal waters of any colony at the time of the establishment of the Commonwealth. It follows from this that at the time of the establishment of the Commonwealth they did not become its land territory or internal waters. In the Engineers' Case (1920) 28 CLR 129, at pp 152-153 , Knox C.J., Isaacs, Rich and Starke JJ., in a joint judgment, said:
"The Act 63 &64 Vict. c. 12, establishing the Federal
Constitution of Australia, being passed by the Imperial Parliament for the express purpose of regulating the royal exercise of legislative, executive and judicial power throughout Australia, is by its own inherent force binding on the Crown to the extent of its operation. It may be that even ifs. V. of the Act 63 &64 Vict. c. 12 had not been enacted,
the force of s. 51 of the Constitution itself would have bound the Crown in right of a State so far as any law validly made under it purported to affect the Crown in that right; but, however that may be, it is clear to us that in presence of both s. V. of the Act and s. 51 of the Constitution that result must follow. The Commonwealth Constitution as it exists for the time being, dealing expressly with sovereign functions of the Crown in its relation to Commonwealth and to States, necessarily so far binds the Crown, and laws validly made by authority of the Constitution, bind, so far as they purport to do so, the people of every State considered as individuals or as political organisms called States - in other words, bind both Crown and subjects."The functions of the Crown include the prerogative of the Crown in relation to foreign affairs. Even if the most limited criterion be applied, a country's territorial waters, the soil beneath them, and the country's shelf, in themselves, have an external aspect and are matters of the country's foreign relations. (at p379)
16. Professor Holdsworth in Essays in Law and History (p. 267) wrote, on the topic "The Relation of English Law to International Law" the following:
"In each case in which the question arises the court must consider whether the particular rule of international law has been received into, and so become, a source of, English law. The Territorial Waters Jurisdiction Act 1878 gave the courts the jurisdiction which the minority of judges in this case had held that they possessed; and its declaratory form is some evidence that the legislature considered that their views were correct. Nevertheless, I think that the opinion of Cockburn C.J. and the majority of the judges had come to be more in accord with the principles of modern English law than the opinion of the minority which represents the older view that international law is per se part of the law of England." (at p379)The English edition published 1878 adds the following (pp. 237-239):
17. I quote a statement in Wheaton's Elements of International Law on maritime territorial jurisdiction which reads as follows:
"The maritime territory of every State extends to the
ports, harbours, bays, mouths of rivers, and adjacent parts of the sea enclosed by headlands belonging to the same State. The general usage of nations super-adds to this extent of territorial jurisdiction a distance of a marine league, or as far as a cannon shot will reach from the shore along all the coasts of the State. Within these limits, its rights of property and territorial jurisdiction are absolute, and exclude those of every other nation".
"This statement requires some qualification. It has now been decided in England by the celebrated case of The Franconia (1877) 2 CPD 173 , that the courts of this country have no jurisdiction over a criminal offence committed on board a foreign ship while that ship is on the open sea, but within three miles of the shore of England. That the question is one of great difficulty and doubt, is shown by the fact that of the fourteen judges who attended during the arguments in The Franconia, seven pronounced against the jurisdiction, while six claimed it. One who agreed with the majority died before judgment was delivered. This case decides that by English law as at present administered, no jurisdiction is claimed over criminal offences committed beyond low water mark, unless they have taken place on board a British ship, or within waters admitted on all hands to be territorial, such as ports,harbours, bays, &. But it still remains a doubtful question,
whether any portion of the open sea may be claimed as part of the territory, and if so to what extent, and for what purposes, it may be so claimed. No precise rule can be derived from the writings of publicists. The suggestion of Bynkershoek given in the text, that the sea, as far as a cannon shot will reach from the shore, should belong to the State it borders, has been adopted by many writers, and has generally been assumed to be a distance of three miles. It is evident, however, that on this assumption, consistency requires the limit to be increased in proportion to the increased range of modern artillery. But in the practical application of the rule, in respect of the particular distance, and in the still more essential particular of the character and degree of sovereignty and dominion to be exercised, a great difference of opinion is to be found. The only point upon which publicists are more or less unanimous, is that some zone of sea (most of them fix it at three miles), is for some purposes subject to the dominions of the local State. 'Even if entire unanimity had existed,' said Lord Chief Justice Cockburn, 'the question would still remain how far the law, as stated by the publicists, had received the assent of the civilised nations of the world.... The question is not one of theoretical opinion, but of fact, and fortunately, the writers upon whose statements we are called upon to act, have afforded us the means of testing those statements by a reference to facts. They refer us to two things, and to these alone - treaties and usage. Let us look a little more closely into both. First, then, let us see how the matter stands as regards treaties. It may be asserted, without fear of contradiction, that the rule that the sea surrounding the coast is to be treated as a part of the adjacent territory, so that the State shall have exclusive dominion over it, and that the law of the latter shall be generally applicable to those passing over it in ships of other nations, has never been made the subject-matter of any treaty, or, as matter of acknowledged right, has formed the basis of any treaty, or has even been the subject of diplomatic discussion .... When the treaties referred to by text writers are looked at, they will be found to relate to two subjects only, - the observance of the rights and obligations of neutrality, and the exclusive right of fishing." In these respects nations have followed text writers, and adopted three miles as a convenient distance, not as matter of existing right, but as matter of mutual concession and convention. Such treaties would be superfluous, if the general assent of nations had given to each a three-mile belt of the sea surrounding its shores. As regards usage, 'the only usage found to exist, is such as is connected with navigation, or with revenue, local fisheries, or neutrality, and it is to these alone that the usage relied on is confined.' His Lordship comes to the conclusion that 'it may not be too much to say that, independently of treaty, the three-mile belt of sea might at this day be taken as belonging for these purposes, to the local State,' and that 'a nation which should now deal with this portion of the sea as its own, so as to make foreigners within it subject to its law, for the prevention and punishment of offences, would not be considered as infringing the rights of other States. But I apprehend that as the ability so to deal with these waters would result, not from any original or inherent right, but from the acquiescence of other States, some outward manifestation of the national will, in the shape of open practice, or municipal legislation, so as to amount, at least constructively, to an occupation of that which was before unappropriated, would be necessary to render the foreigner, not previously amenable to our general law, subject to its control.' " (at p381)
18. It would be strange if the Executive Government of the Commonwealth which, as Latham C.J. said in R. v. Burgess; Ex parte Henry (1936) 55 CLR, at p 644 , can deal administratively with the external affairs of the Commonwealth, could not negotiate and ratify an international Convention settling the rules of international law applicable to the subjects of the Conventions to which the Act gave effect. It is not inconsistent with the Commonwealth of Australia Constitution Act (63 &64 Vict. c. 12), which, indeed, gave effect to the agreement of the people of the colonies to unite in an indissoluble federal Commonwealth under the Crown and under the Constitution thereby established. The Constitution is s. 6 of that Act. (at p381)
19. In Wheaton's Elements of International Law the following statement on "Federal Unions" is made at p. 57:
20. The land underlying the sea adjacent to the coast of the States respectively, or the soil that underlies it or the sea or any part of the shelf of that land are not mentioned in the Constitution. No rights of the States in respect of this land or sea are implicitly reserved by the Constitution. As a whole these regions are an appendage of the continent and a sphere proper for the operation of international law. A necessary intendment of the Act, 63 &64 Vict. c. 12, would I think be that the sovereignty which the Crown possessed in respect of such regions would be exercisable by the Executive Government of the Commonwealth in accordance with the Constitution. In my opinion ss. 6, 10 and 11 respectively accomplish that object. (at p382)
21. The Seas and Submerged Lands Act 1973, is, in my judgment, a law entirely supported by s. 51 (xxix.) of the Constitution and is not in conflict with s. 123 of the Constitution. (at p382)
GIBBS J. In these proceedings, respectively brought by each of the six States against the Commonwealth, we are called upon to decide whether the Seas and Submerged Lands Act 1973 ("the Act") is a valid law of the Commonwealth. (at p383)
The Act and the Geneva Conventions.
2. The Act contains three main sections to which its other provisions may properly be regarded as incidental. These three sections deal respectively with sovereignty in respect of the territorial sea, sovereignty in respect of internal waters and sovereign rights in respect of the continental shelf. Section 6, which deals with the territorial sea, reads as follows:
3. Section 10 deals with internal waters. It provides as follows:
6. The Act contains three saving provisions in ss. 14, 15 and 16. Those sections read as follows:
15. An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation. In my opinion, the power conferred upon the Parliament by s. 51 (xxix.) to make laws with respect to external affairs would authorize legislation of that kind. It is quite unnecessary for present purposes to consider the difficult questions to which the words of s. 51 (xxix.) can in some cases give rise. The extension of the sovereignty of the Commonwealth over territory, whether on land or at sea, which is not already part of the Commonwealth, is a matter that affects the external relations of the Commonwealth. An assertion of sovereignty in those circumstances would be entirely international in character and would not affect the rights of the States but would, on the other hand, involve the Commonwealth's relations with other nations. The same would of course be true of an assertion of sovereign rights in the continental shelf, assuming that to be no part of the territory of the States. Legislation which gave effect to an extension of sovereignty or sovereign rights in those circumstances would be legislation with respect to external affairs on the narrowest view of s. 51 (xxix.). It would be unnecessary (but perhaps possible) also to justify such legislation by reference to the principle that Commonwealth powers extend to "whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" (Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth (1945) 71 CLR 237, at p 269; also at p 266 , and see Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338 ). (at p389)
19. In Wheaton's Elements of International Law the following statement on "Federal Unions" is made at p. 57:
"... the federal government created by the act of union is sovereign and supreme, within the sphere of the powers granted to it by that act; and the government acts not only upon the States which are members of the confederation, but directly on the citizens. The sovereignty, both internal and external, of each several State is impaired by the powers thus granted to the federal government, and the limitations thus imposed on the several State governments. The compositive State, which results from this league, is alone a sovereign power."Hall's International Law, 6th ed., pp. 24-25, states:
"The distinguishing marks of a federal state upon its inter-national side consist in the existence of a central government to which the conduct of all external relations is confided, and in the absence of any right on the part of the states forming the corporate whole to separate themselves from it. Under the Constitution of the United States, for example, the central authority regulates commerce, accredits diplomatic representatives, makes treaties, provides for the national defence, declares war and concludes peace; the individual states, on the other hand, are expressly forbidden to enter into any agreement with foreign powers without the assent of Congress, to maintain military or naval forces, or to engage in war."Section 61 (executive power) of the Constitution of Australia is applicable in relation to external affairs and s. 51 (xxix.) is a power to make laws with respect to that subject matter. The Act under consideration here is not extraordinary even though Australia is a federal Commonwealth. (at p382)
20. The land underlying the sea adjacent to the coast of the States respectively, or the soil that underlies it or the sea or any part of the shelf of that land are not mentioned in the Constitution. No rights of the States in respect of this land or sea are implicitly reserved by the Constitution. As a whole these regions are an appendage of the continent and a sphere proper for the operation of international law. A necessary intendment of the Act, 63 &64 Vict. c. 12, would I think be that the sovereignty which the Crown possessed in respect of such regions would be exercisable by the Executive Government of the Commonwealth in accordance with the Constitution. In my opinion ss. 6, 10 and 11 respectively accomplish that object. (at p382)
21. The Seas and Submerged Lands Act 1973, is, in my judgment, a law entirely supported by s. 51 (xxix.) of the Constitution and is not in conflict with s. 123 of the Constitution. (at p382)
GIBBS J. In these proceedings, respectively brought by each of the six States against the Commonwealth, we are called upon to decide whether the Seas and Submerged Lands Act 1973 ("the Act") is a valid law of the Commonwealth. (at p383)
The Act and the Geneva Conventions.
2. The Act contains three main sections to which its other provisions may properly be regarded as incidental. These three sections deal respectively with sovereignty in respect of the territorial sea, sovereignty in respect of internal waters and sovereign rights in respect of the continental shelf. Section 6, which deals with the territorial sea, reads as follows:
"It is by this Act declared and enacted that the sovereignty in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth."The expression "the territorial sea" means "the territorial sea of Australia": s. 5. No further definition of the term is attempted by the Act. However, the Governor-General is given power by proclamation to declare, not inconsistently with s. II of Pt I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea, and for the purposes of such a proclamation he may determine the breadth of the territorial sea and the baseline from which the breadth of the territorial sea, or of any part of it, is to be measured: s. 7. (at p383)
3. Section 10 deals with internal waters. It provides as follows:
"It is by this Act declared and enacted that the sovereignty in respect of the internal waters of Australia (that is to say, any waters of the sea on the landward side of the baseline of the territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth." (at p383)The Governor-General has power by proclamation to declare, not inconsistently with the Convention on the Continental Shelf or any relevant international agreement to which Australia is a party, the limits of the whole or any part of the continental shelf of Australia: s. 12. (at p384)
4. In the Act, the term "continental shelf" has the same meaning as in the Convention on the Continental Shelf: s. 3 (1). Article 1 of that Convention defines the term as follows:
"For the purpose of these articles, the term 'continental
shelf' is used as referring (a) to the seabed and subsoil of the submarine areas adjacent to the coast but outside the area of the territorial sea, to a depth of 200 metres or, beyond that limit, to where the depth of the superjacent waters admits of the exploitation of the natural resources of the said areas; (b) to the seabed and subsoil of similar submarine areas adjacent to the coasts of islands." (at p384)
5. By s. 11 of the Act, it is provided:
"It is by this Act declared and enacted that the sovereign
rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purpose of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth."
6. The Act contains three saving provisions in ss. 14, 15 and 16. Those sections read as follows:
"14. Nothing in this Part affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and - (a) were, on 1st January, 1901, within the limits of a State; and (b) remain within the limits of the State, or in respect of the airspace over, or in respect of the sea-bed or subsoil beneath, any such waters. 15. Nothing in this Part shall be taken to vest in the Crown in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works. 16. The preceding provisions of this Part - (a) do not limit or exclude the operation of any law of the Commonwealth or of a Territory in force at the date of commencement of this Act or coming into force after that date; and (b) do not limit or exclude the operation of any law of a State in force at the date of commencement of this Act or coming into force after that date, except in so far as the law is expressed to vest or make exercisable any sovereignty or sovereign rights otherwise than as provided by the preceding provisions of this Part." (at p384)That statement, in my respectful opinion, correctly states the law. The acquisition of territory by a sovereign state for the first time is an act of state which cannot be challenged, controlled or interfered with by the courts of that state. For statements and illustrations of this principle it is enough to refer to Salaman v. Secretary of State in Council of India (1906) 1 KB 613, esp at pp 639-640 ; Sobhuza II v. Miller (1926) AC 518 , and Secretary of State for India v. Sardar Rustam Khan (1941) AC 356, esp at pp 370-371 . Those cases were concerned with the acquisition of territory on land but the same principle applies where the Crown, in the course of its relations with other nations, asserts sovereignty over an area of sea, or sovereign rights over the continental shelf, either pursuant to international treaty or even by unilateral action. The prerogatives of the Crown to acquire new territory or extend its sovereignty or jurisdiction are, in my opinion, available to the Crown in right of the Commonwealth. (at p388)
7. The Act recites that Australia is a party to the Convention on the Territorial Sea and the Contiguous Zone and to the Convention on the Continental Shelf. Each of those Conventions was signed at Geneva on 29th April 1958. A copy of each is contained in a schedule to the Act. It is unnecessary to do more than give a brief indication of the nature of their provisions. The Convention on the Territorial Sea and the Contiguous Zone declares that the sovereignty of a state extends, beyond its land territory and its internal waters, to the territorial sea and to the airspace above it as well as to its bed and subsoil: s. I of Pt I. The limits of the territorial sea are dealt with in s. II of Pt I. Having regard to the provisions of s. 10 of the Act it should perhaps be mentioned that the normal baseline for measuring the breadth of the territorial sea is the low-water line along the coast, but in localities where the coastline is deeply indented and cut into, or if there is a fringe of islands along the coast in its immediate vicinity, the method of straight baselines joining appropriate points may be employed in drawing the baseline from which the breadth of the territorial sea is measured: Arts. 3,4(1). Ships of all states are to enjoy the right of innocent passage which is defined and regulated by s. III. A coastal state is given the right to exercise, in a zone of the high seas contiguous to its territorial sea, the control necessary to prevent infringement of its customs, fiscal, immigration or sanitary regulations within its territory or territorial sea or punish any such infringement committed within its territory or territorial sea: Pt II. (at p385)
8. By the Convention on the Continental Shelf it is provided that the coastal state exercises over the continental shelf sovereign rights for the purpose of exploring it and exploiting its natural resources: Art. 2 (1) . The rights of the coastal state over the continental shelf, which are defined and qualified by other provisions of the Convention, do not affect the legal status of the superjacent waters as high seas, or that of the airspace above those waters: Art. 3. (at p385)
9. Before it can be decided whether the Act is valid, it is necessary to determine its true meaning. Sections 6 and 10 speak of "sovereignty". That word is at best imprecise, but when used in relation to a federation it assumes protean qualities. No one can doubt that, for the purposes of international law, Australia is now a sovereign state. It is "a nation which governs itself by its own authority and laws without dependence on any foreign power" (see Duff Development Co. Ltd. v. Government of Kelantan (1924) AC 797, at p 807 where a passage from Vattel is cited). However, for the purposes of the municipal law of Australia there exists that division of sovereign authority which is characteristic of, if not essential to, a federal constitution. All the powers of government are distributed between the Commonwealth and the States. The Convention on the Territorial Sea and the Contiguous Zone deals with sovereignty only for the purposes of international law. It recognizes that a coastal state is, for the purposes of international law, sovereign of the territorial sea as it is of its land territory and internal waters, but it is not concerned with the way in which the municipal law of any coastal state distributes its sovereignty or with the question where, according to the constitution and laws of any state, the powers of government are reposed. The Convention recognizes that the sovereignty of Australia extends to its territorial sea; it says nothing as to whether that sovereignty is vested solely in the Commonwealth or is divided between the Commonwealth and the States. (at p386)
10. If the Act did no more than echo the Convention, and declared that for the purposes of international law the Commonwealth is the state recognized as the sovereign of the territorial sea, as it is of the land, there would be no doubt as to its validity. If the intention of the Act were merely to give effect to the Convention, it would be natural to start with the assumption that "sovereignty" has the same meaning in the Act as in the Convention. However, there are a number of indications that the purpose of the Act is to do a great deal more than simply give effect to the Convention. Sections 6 and 10 do not declare that the sovereignty of Australia extends beyond its land territory and its internal waters to the territorial sea; they declare and enact that the sovereignty in respect of the territorial sea and internal waters is vested in, and exercisable by, the Crown in right of the Commonwealth. Although it is not very material, I should say that it appears to me that the words "vested in" govern "the Crown in right of the Commonwealth" and not merely "the Commonwealth". The reference to "the Crown in right of the Commonwealth" indicates that the Act, unlike the Convention, distinguishes between the position of the Commonwealth and the States. Section 14 also makes it clear that the Act is concerned with the Commonwealth not as a person at international law, but vis-a-vis the States. The sovereignty which the Act vests in the Crown in right of the Commonwealth is intended to carry with it the ownership of the seabed and subsoil; if this were not so, the provisions of s. 15 would be unnecessary. Moreover, s. 16 appears to assume that if it were not for the provisions of that section the operation of all State laws in the territorial sea and internal waters might be excluded. When the Act says that the Crown in right of the Commonwealth is sovereign, it does not mean only that when a law of a State is inconsistent with a law of the Commonwealth the latter shall prevail; it asserts an ampler sovereignty than that. The Act, on its proper construction, in effect declares that the Crown in right of the Commonwealth has plenary and unlimited powers over the territorial sea and internal waters, and is the owner of the seabed and subsoil beneath them. (at p387)
11. When s. 11 refers to "the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia", it does not anywhere indicate that those rights are to be limited by reference to the Convention on the Continental Shelf. The section in effect assumes that Australia has sovereign rights in respect of the continental shelf and vests those rights in, and makes them exercisable by, the Crown in right of the Commonwealth. (at p387)
12. A final question of construction that arises is whether ss. 6 and 10 intend to enable the Executive Government of the Commonwealth to exercise all the powers of sovereignty - legislative, executive and judicial - in respect of the territorial sea and internal waters. The use of the words "and exercisable by" after "is vested in" in those sections suggests that it was intended not only to assert sovereignty but also to give the Crown the right to exercise all the powers which belong to sovereignty. However, the expression "the Crown in right of the Commonwealth" does not naturally refer to the Governor-General or the Governor-General in Council. The Act itself, in ss. 7 and 8, confers powers upon the Governor-General by that name and this strengthens the view that "the Crown" in the Act does not mean the Executive Government. In my opinion, the Act does not purport to confer legislative, executive and judicial powers on the Governor-General; its intention is to assert that the Crown in right of the Commonwealth is invested with, and may exercise, sovereignty over the territorial seas and internal waters. Further legislation would be necessary to enable any organ or instrumentality of the Commonwealth to exercise any specific power. On this view no question arises as to whether the Parliament has in effect abdicated its legislative power or has improperly commingled judicial and other powers. (at p387)
Commonwealth Powers.
13. In my opinion there is no doubt that the Act will be valid if, when it was passed, the territorial sea and internal waters (and the airspace above and the seabed and subsoil below them) were already subject to the sovereignty of the Crown in right of the Commonwealth, and the Crown in such right already had sovereign rights over the continental shelf. It cannot be doubted that the Parliament has power to declare the existence of sovereignty or sovereign rights that have previously become vested in the Crown in right of the Commonwealth. Further, the Crown in right of the Commonwealth had power to acquire sovereignty over the territorial sea and internal waters, and sovereign rights over the continental shelf, if that sovereignty and those sovereign rights were not already vested in the Crown in some other capacity, e.g. in right of the States, and the Parliament had power to legislate to give effect to such an acquisition. The Act will, however, be invalid in whole or in part if, when it was passed, the territorial sea or inland waters formed part of the territory of any of the States, or the States had rights of property in the bed and subsoil beneath those waters, or in the continental shelf. (at p388)
14. In Post Office v. Estuary Radio Ltd. Diplock L.J. said (1968) 2 QB 740, at p 753 :
"It still lies within the prerogative power of the Crown to
extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required."
15. An extension of sovereignty over an area of the sea not already part of the Commonwealth (and therefore not part of any State), or the acquisition of new sovereign rights over the continental shelf, might be effected by executive act, but might validly be authorized, ratified or given recognition by legislation. In my opinion, the power conferred upon the Parliament by s. 51 (xxix.) to make laws with respect to external affairs would authorize legislation of that kind. It is quite unnecessary for present purposes to consider the difficult questions to which the words of s. 51 (xxix.) can in some cases give rise. The extension of the sovereignty of the Commonwealth over territory, whether on land or at sea, which is not already part of the Commonwealth, is a matter that affects the external relations of the Commonwealth. An assertion of sovereignty in those circumstances would be entirely international in character and would not affect the rights of the States but would, on the other hand, involve the Commonwealth's relations with other nations. The same would of course be true of an assertion of sovereign rights in the continental shelf, assuming that to be no part of the territory of the States. Legislation which gave effect to an extension of sovereignty or sovereign rights in those circumstances would be legislation with respect to external affairs on the narrowest view of s. 51 (xxix.). It would be unnecessary (but perhaps possible) also to justify such legislation by reference to the principle that Commonwealth powers extend to "whatever is incidental to the existence of the Commonwealth as a state and to the exercise of the functions of a national government" (Attorney-General (Vict.); Ex rel. Dale v. The Commonwealth (1945) 71 CLR 237, at p 269; also at p 266 , and see Victoria v. The Commonwealth and Hayden (1975) 134 CLR 338 ). (at p389)
54. Not only is there no basis in English legal theory for the view that the seas adjoining the Australian colonies came to be held by the Crown in right of those colonies and not in right of the United Kingdom, but also in practical effect such a view is untenable. The claim of the Crown to the sea is an assertion of sovereignty. It may or may not be recognized by the rules of international law currently accepted as the law of nations. It happens that a three-mile limit came during the nineteenth century to be recognized among the great majority of the great powers but it was not universally accepted. See Attorney-General (British Columbia) v. Attorney-General (Canada) (1914) AC, at p 174 . Nor was it agreed that a sovereign state owned the seas in the same way as it owned the land. It has never been so agreed. The right of innocent passage denies that proposition. And it may now be asked - could the Crown in right of a colony deny innocent passage to foreign ships in the adjoining seas? The answer must be negative. Yet the Imperial Crown could do so by virtue of its prerogative. The repercussions among nations could be very serious. They were serious enough when the Territorial Waters Jurisdiction Act, 1878 (Imp.) was passed and would have been equally serious if the act done in relation to the sea had not been the passing of a statute but had been a prerogative act or even if the prerogative assertion had been made. But the legality of the act would not have been cognizable by any municipal court. The international law, whatever it was, on the extent of territorial seas was and is no part of municipal law as a majority of the judges in Reg. v. Keyn (1876) 2 Ex D 63 made clear. Yet it is said that the prerogative of the Crown in respect of adjoining seas adhered to the Crown in right of a colony provided that the Crown did not break the rules of international law. I do not understand such a concept, when those rules are not part of any municipal law. And, this being so, how did the prerogative come to divide between the Imperial Crown which could refuse to recognize or obey a rule of international law and the Crown in right of the colony which could not so refuse? I can see no way. It was argued that because the prerogatives of the Crown in the colony, even those of a proprietary nature, became vested in the Crown in right of the colony on the grant of responsible government (Williams v. Attorney-General (N.S.W.) (1913) 16 CLR 404, at pp 442, 448-456 ) then, even though the sea and its bed be not part of the colony, the prerogative right thereto nevertheless became vested in the Crown in right of the colony. The argument involves an obvious non sequitur. (at p494)
55. I now come to the argument that because a colony could make laws which had effect and could be enforced upon the seas bordering that colony therefore those seas were within the boundaries of the colony. There can be no doubt that during the nineteenth century the rule of international law which the Imperial Crown came to recognize as that to which it would subscribe was that the territorial waters of a sovereign state in the usual case extended a distance of three miles from the low-water mark of the shore of that state. When the Crown recognized this rule of international law, it at the same time forwent its ancient claim to seas beyond those limits. The courts of law were bound to have regard to this limitation of the Crown claims where it was necessary and appropriate so to do because only what the Crown claimed in the seas was recognized by the common law. Likewise the courts would recognize a claim to jurisdiction in territorial waters by a foreign sovereign if that claim was not inconsistent with a claim of the Crown. Therefore when and so long as the Crown recognized the three-mile belt of sea as a belt within which an adjoining state could exercise jurisdiction, the courts of law on well established principle would recognize such a claim of a foreign sovereign. That was done in Carr v. Fracis Times &Co. (1902) AC 176 . (at p494)
56. A result of the limitation of the Crown claim to a three-mile belt of territorial sea was that a colonial legislature was regarded by the law officers of the Crown (and very many examples have been cited to us) as having a power to make laws taking effect within but not beyond those limits. Now it is said that because colonial legislatures legislated in respect of the seas within these limits (with the approval of the law officers in their advices and therefore with no disallowance of the legislation) and because a colonial legislature could not pass extra-territorial legislation, therefore the adjoining seas must have been within the territory of the colonies. Stephen J. had occasion to refer in Reg. v. Bull (1974) 131 CLR 203, at pp 270-271 to the limits of colonial legislative power and I agree with his account thereof where he adopted, as I would now adopt, the statement of Barwick C.J. in Bonser v. La Macchia (1969) 122 CLR 177, at p 189 :
"Of course, the colonies were competent to make laws which operated extra-territorially - that is to say, beyond their land margins and in and on the high seas, not limited to the three-mile belt of the territorial sea. But this legislative power of the colony was derived, in my opinion, from the plenary nature of the power to make laws for the peace, order and good government of the territory assigned to the colony." (at p495)and by s. 11 -
57. The argument, therefore, based on the limit of colonial legislative power, does not avail the States. The exercise of legislative power and the exercise of powers pursuant to legislative authority have been exemplified to us in great numbers but they are no more than examples of the exercise of the colonial legislative or executive powers on the principle enunciated by Barwick C.J. in the passage quoted. Whether or not they were all within that principle does not now fall to be determined. (at p495)
58. I therefore answer my third question by stating that no part of the sea adheres to the State or States of the Commonwealth which it adjoins so that by implication or by operation of law the adjoining State has the same powers in respect thereof as it has over the territory expressly comprised within its boundaries. And I turn now to my fourth question(4) Does a declaration by Australia that it has sovereignty or sovereign rights among the nations over a part of the sea adjoining the boundaries of the Commonwealth result in a State having in that part of the sea adjoining its boundaries the same powers as it has over the territory expressly comprised within its boundaries? (at p495)
59. The argument presented on this question depended upon the proposition that the boundaries of the respective States were co-extensive with the area in respect of which under the currently accepted law of nations laws for the government thereof could be made. The proposition is inconsistent with the reasoning upon which I have answered the last question and I therefore do not repeat the reasons which lead me to deny this proposition. No answer to any of the questions raised in these cases can, in my opinion, be found in the law of nations where that law is not a part of the municipal law. (at p496)
60. But there is an associated approach which, although it was not put, needs to be considered. Can it be that when Australia expands by establishing sovereignty either by international assent or by national claim over an area adjacent to the boundaries of a State, the federal nature of our system of government likewise expands so that the area of new sovereignty becomes incorporated into the federal structure? It is a novel question but the answer cannot be that the boundaries of the various States expand. What happens in my view is that the limits within which it is proper for States to pass laws having an extra-territorial operation, limits to which I shall have occasion hereafter to refer, expand, so that laws which would not otherwise be for the peace and welfare and good government of a State may become so by virtue of the sovereignty of Australia in the seas within the extended area. However, any such laws will not be valid to the extent that they are inconsistent with a valid Commonwealth law. And that brings me to the last question -
(5) Is it within the power of the Commonwealth to provide for the manner of exercise of Australia's sovereignty or sovereign rights over an area of the sea outside the boundaries of the States where that sea is not territory of the Commonwealth within the meaning of s. 122 of the Constitution? (at p496)
61. The Act discloses no intention to acquire the territorial seas and the rights in the continental shelf as territory of the Commonwealth. Nor does the Act purport to make the Conventions part of the law of the Commonwealth or to implement treaty obligations in the manner dealt with in R. v. Burgess; Ex parte Henry (1936) 55 CLR 608 . It seems clear that on the interpretation which I have adopted of s. 6 and s. 10 the Act goes beyond the Conventions at least in so far as it provides how sovereignty shall be exercised in the relevant areas and perhaps in that it does not enact the limitations on the exercise of sovereignty and sovereign rights which are contained in the two Conventions. The scope of the external affairs power, as it fell to be considered in that case, therefore does not arise in the present case. (at p497)
62. It has been submitted that the words "external affairs" in s. 51 (xxix.) do not comprehend every external affair but are intended "simply to bring within power British Imperial (now Commonwealth of Nations) Affairs as well as Foreign Affairs". As I understand the submission, by "Imperial Affairs" and "Foreign Affairs" are here meant relationships with other parts of the Empire (Commonwealth of Nations) or other countries which are reflected in some dealing with them or attitude or stance taken towards them. It is therefore submitted that laws made with respect to external affairs do not comprehend all laws operating upon persons or things beyond the boundaries of the Commonwealth; that the source of power to make such laws must be found in other particular subject matters of legislative power. (at p497)
63. In my opinion the Commonwealth has the power to make laws in respect of any person or place outside and any matter or thing done or to be done or prohibited to be done outside the boundaries of the Commonwealth. (at p497)
64. The power to make laws in respect of any place outside and any matter or thing done or to be done outside the boundaries of the Commonwealth is clearly not vested in the States. It is in my view now vested in the Australian Crown by virtue of the external affairs power. (at p497)
65. The words "external affairs" must be given their ordinary meaning. It is true that the operation of the power may have been limited in 1900 by the concept that Australia, lacking sovereignty, could legislate only for its territory; but that limitation, if it existed, did not alter the meaning of the words. It is not a sufficient reason for reading down the meaning of these words that there are other provisions of the Constitution, e.g. s. 51 (xxx.), which expressly confer power to legislate with extra-territorial effect or which, e.g. s. 51 (x.), may place a particular limitation in favour of the States on the power to legislate extra-territorially. (at p497)
66. The express power of the Australian Crown to make laws with respect to places outside, or matters or things done outside the boundaries of the Commonwealth is no more fettered by notions of extra-territoriality than is the power possessed by the British Crown. That power attached to the British Crown by virtue of the pre-eminence and excellence which it claimed and which, even though there be limitations imposed by the common law itself as well as by statute on its exercise by the Crown in Council, is wholly without limit when exercised by the Crown in Parliament. Hence sprang the sovereignty of the British Parliament at Westminster and it followed that no statute of that Parliament could be held invalid on any ground whatosever, even if it invaded the rights of the Crown or of the subject under the common law, even if it operated extra-territorially and even if it violated international law. (at p498)
67. Clearly the Crown in the Australian Executive Council and in the Australian Parliament has one bound which the British Parliament has not, for it cannot transgress the Constitution. But subject to that Constitution it in Council and in Parliament has that pre-eminence and excellence as a sovereign Crown which is possessed by the British Crown and Parliament. Exactly when it attained these qualities is a matter of the constitutional history of the British Commonwealth of Nations largely reflected in the Imperial Conferences following the Great War. Legal recognition came through the Statute of Westminster, 1931 and its later adoption by Australia. Now the Constitution is the only limitation. There is no gap in the constitutional framework. Every power right and authority of the British Crown is vested in and exercisable by the Crown in Australia subject only to the Constitution. The State legislatures do not have that sovereignty which the British legislature and now the Australian legislature possess. A State can only legislate in respect of persons acts matters and things which have a relevant territorial connexion with the State, a connexion not too remote to entitle the law to the description of a law for the peace welfare and good government of the State. See Johnson v. Commissioner of Stamp Duties (1956) AC 331, at pp 351-353, 355 . The words of s. 51 of the Constitution do not import any similiar territorial limitation and there now is none in the case of the Australian legislature. The words "external affairs" can now be given an operation unaffected by any concept of territorial limitation. The result is that the Commonwealth, outside the boundaries of the States and subject to any particular constitutional injunctions, may make laws on all subject matters in exercise of its sovereignty. (at p498)
68. I would dismiss all actions. (at p498)
MURPHY J. The six States have brought seperate suits against Australia, claiming a declaration that the Seas and Submerged Lands Act 1973 is invalid. They have claimed in particular, or as an alternative, a declaration that certain sections are invalid either absolutely or in relation to certain areas or waters. (at p499)
The Seas and Submerged Lands Act.
2. It is "an Act Relating to Sovereignty in respect of certain Waters of the Sea and in respect of the Airspace over, and the Sea-bed and Subsoil beneath, those Waters and to Sovereign Rights in respect of the Continental Shelf and relating also to the Recovery of Minerals, other than Petroleum, from the Sea-bed and Subsoil beneath those Waters and from the Continental Shelf". Although this long title refers to the recovery of minerals other than petroleum, any opertive provisions dealing with this subject were deleted from the legislation. (at p499)
3. The preamble recites that a belt of sea adjacent to the coast of Australia, known as the territorial sea, and the airspace over that sea and its bed and subsoil are within the sovereignty of Australia; that "Australia as a coastal state, has sovereign rights in respect of the continental shelf (that is to say, the seabed and subsoil of certain submarine areas adjacent to its coast but outside of the area of the territorial sea) for the purpose of exploring it and exploiting its natural resources"; and that Australia is a party to two conventions (copies of which are set out in the schedule), the Convention on the Territorial Sea and the Contiguous Zone and the Convention on the Continental Shelf. (at p499)
4. In Pt I, Preliminary, "continental shelf" is given the same meaning as in the Convention on the Continental Shelf, unless the contrary intention appears. Section 3 (2) states that references to the territorial sea are to it "so far as it extends from time to time". Section 3 (3) provides similarly for the continental shelf. Sections 6 and 7 follow: "6. It is by this Act declared and enacted that the sovereignty
in respect of the territorial sea, and in respect of the airspace over it and in respect of its bed and subsoil, is vested in and exercisable by the Crown in right of the Commonwealth. 7. (1) The Governor-General may, from time to time, by Proclamation, declare, not inconsistently with Section II
of Part I of the Convention on the Territorial Sea and the Contiguous Zone, the limits of the whole or of any part of the territorial sea. (2) For the purposes of such a Proclamation, the Governor-General may, in particular, determine either or both
of the following:- (a) the breadth of the territorial sea. (b) the baseline from which the breadth of the territorial sea, or of any part of the territorial sea, is to be measured." (at p499)
5. Section 8 empowers the Governor-General to declare historic bays and waters and define their seaward limits. (at p500)
6. It is "declared and enacted" by s. 10 - "...that sovereignty in respect of internal waters of Australia
(that is to say, any waters of the sea on the landward side of the baseline of territorial sea) so far as they extend from time to time, and in respect of the airspace over those waters and in respect of the sea-bed and subsoil beneath those waters, is vested in and exercisable by the Crown in right of the Commonwealth."
"...that the sovereign rights of Australia as a coastal State in respect of the continental shelf of Australia, for the purposes of exploring it and exploiting its natural resources, are vested in and exercisable by the Crown in right of the Commonwealth." (at p500)
7. Section 12 enables the Governor-General to declare (not inconsistently with the Convention on the Continental Shelf or any relevant agreeement to which Australia is a party) the limits of the whole or any part of the continental shelf of Australia. (at p500)
8. Division 3 (Savings) provides that nothing in Pt II affects sovereignty or sovereign rights in respect of any waters of the sea that are waters of or within any bay, gulf, estuary, river, creek, inlet, port or harbour and were on 1st January 1901 within the limits of a State and remain so or in respect of the airspace over, or of the seabed or subsoil beneath, any such waters. (at p500)
9. Section 15 provides that nothing in Pt II shall be taken to vest in the Crown in right of the Commonwealth any wharf, jetty, pier, breakwater, building, platform, pipeline, lighthouse, beacon, navigational aid, buoy, cable or other structure or works; and s. 16 provides that Pt II is not to limit or exclude other laws of the Commonwealth or a Territory or any State law, or (except so far as it was expressed) to vest or make exercisable any soveignty or sovereign rights otherwise than as provided in Pt II. (at p500)
The International Law of the Sea.
10. In international law, the rights in regard to territorial sea, sea-bed, subsoil, continental shelf and contiguous zone which are disputed in this case, are clearly the attributes of an international personality (see H. Lauterpacht, "Sovereignty over Submarine Areas", British Year Book of International Law (1950), p. 376). Whatever their nature, whatever their limits may be or may be altered to, they remain attributes of that personality. In this case, it is clear that the relevant international personality is Australia. It is "the State" for international purposes. The six States of Australia have no standing under international law and are not recognized by it. In international law, they simply do not exist. (at p501)
11. During the last three decades, the international law of the sea has evolved rapidly (see Lay, Churchill and others, New Directions in the Law of the Sea (1973), vols I-III (British Institute of International and Comparative Law)). This has resulted from the large number of new states, the abandoning of outdated concepts and the emergence of concepts new to international law, such as the continental shelf, the exclusive economic zones beyond the territorial sea, and the 200 mile patrimonial sea (see The Declaration of Santo Domingo Conference (1972), and the General Report of the African States Regional Seminar (1972)). New coastal states have challenged the traditional concepts of freedom of the seas. As a result, there has been a rapid change from an almost universal acceptance of a three-mile territorial sea to a general acceptance of a greater width. Many states claim twelve miles and a few claim greater widths. (at p501)
14. Advancing technology has revealed new uses of the sea and caused greater activity in already established uses. This, together with the challenges of the new states, has made the existing rules of the law of the sea either obsolete or inadequate and a restatement of the law of the sea necessary. The views of older writers and authorities stressed in argument in this case are now largely irrelevant. Recent writers have referred to "the disintegration" of this body of the law (see Yates &Young, Limits to National Jurisdiction over the Sea, University of Virginia Press (1974)). (at p502)
12. Although the act of delimitation of sea areas "is necessarily a unilateral act", "the validity of the delineation with regard to other States depends upon international law" (Anglo-Norwegian Fisheries Case (1951) ICJ Rep 116, at pp 125, 132 ). And, once the low-water mark is passed, the international domain is reached (United States v. California (1947) 332 US 19 (91 Law Ed 1889) ; Reg. v. Keyn (1876) 2 Ex D 63 ). The extent of territorial waters may be declared within the limits accepted by international law. The various limits declared appear in the National Legislation and Treaties Relating to the Territorial Sea, the Contiguous Zone, the Continental Shelf, the High Seas and to Fishing and Conservation of the Living Resources of the Sea, United Nations Legislative Series, ST/Leg/Ser.B/15, (1970) and National Legislation and Treaties Relating to the Law of the Sea, United Nations Legislative Series, ST/Leg/Ser.B/16, (1974). (at p501)
13. The legal doctrine of the continental shelf was not mooted until 1945 (see Abu Dhabi Case (1952) 1 ICLQ 247, at pp 253-260 ), although the expression "continental shelf" was first used by a geographer in 1898. It is that part of the continental mass temporarily (measured in geological time) overlapped by the oceans. The first important formulation of it as a legal concept was in the Truman Proclamation of 28th September 1945 (see C.H.M. Waldock "The Legal Claims to the Continental Shelf", Problems of Public and Private International Law, vol. 36 (1950), p 115. (at p502)
15. The most dominant trend is the claim of states for larger and larger areas of the sea in order to exercise exclusive national jurisdiction for a greater number of purposes. Competing with this is the claim for collective international exploitation of the marine and submarine resources. (at p502)
16. The developing law of the sea has involved an enormous range of subjects which have formed part of intense international discussion and disputation at continuing United Nations conferences on the law of the sea. These subjects include the proposed international regime for the ocean floor, exclusive fishing zones, conservation zones, innocent passage and other rights to transit, scientific research, control of pollution, zones of peace and security, slavery, terrorism and drug trafficking on the seas. International agreements have been reached on many of these and provide in some cases for observation and enforcement of international rules of the sea. (at p502)
17. The areas of general agreement on the subjects of ownership of territorial seas, rights to the seabed and subsoil under these seas, and to the continental shelves and contiguous zones are reflected in the two important conventions held in 1958 on the Territorial Sea and the Contiguous Zone, and on the Continental Shelf, which are referred to in the Act. (at p502)
18. The States contended that the Act was not authorized by any legislative power. I will deal with this contention under the headings, External Affairs, and Other Powers in s. 51. (at p502)
External Affairs.
19. An exhaustive definition of external affairs is not necessary for this case and is perhaps not possible. External affairs extend over a whole range of economic, social and political subjects of international concern, some of which were probably not conceivable at the time of Federation; they are generally, but not necessarily, of international concern and include but are not limited to the subject matters of treaties and conventions to which Australia is a party, and to the affairs of international bodies (such as the United Nations Organization) of which Australia is a member. (at p503)
20. External affairs may also be internal affairs; they are not mutually exclusive. For example, control of traffic in drugs of dependence, diplomatic immunity, preservation of endangered species and preservation of human rights may be external affairs as well as internal. (at p503)
21. External affairs are conducted under the executive power contained in s. 61 of the Constitution. Discussion and negotiation of treaties and other arrangements on a wide range of subjects is the daily business of the Australian Government, generally through the Department of Foreign Affairs, but increasingly through other departments of State as Australia's internal affairs become more and more involved with those of other countries. This reflects the impracticability of dealing with many aspects of Australia's internal affairs, for example, minerals and energy, primary industry, environment and general management of the economy, other than in the context of international arrangements. (at p503)
22. The Parliament has power, subject to the Constitution, to make laws with respect to "external affairs". The power authorizes, but is not limited to, the making of laws for implementation of treaties or conventions to which Australia is a party. From these, benefits flow to Australia either directly or as part of the community of nations. Under these, Australia has often assumed obligations which can only be implemented by legislation. The practical experience of our Constitution is that this can only be done effectively by the national Parliament. (at p503)
23. When legislation based on the external affairs power is considered, the presumption of validity should be applied as with other enactments. The use of the external affairs power may be novel, but this is no excuse for adopting a narrow, cautious or suspicious approach to Acts which are said to be supported on that power. The Constitution, particularly s. 51 (xxix.), is intended to enable Australia to carry out its functions as an international person, fulfilling its international obligations and acting effectively as a member of the community of nations. If not, Australia would be an international cripple unable to participate fully in the emerging world order. (at p503)
24. The Act deals directly with aspects of external affairs and is particularly directed towards the carrying out of the provisions of the two Conventions. It was suggested that the Act departs from the Conventions. If it does, it is still on subjects of external affairs. If there were no such Conventions, an Act in substance the same as this would still be a law with respect to external affairs. (at p504)
25. The Seas and Submerged Lands Act is thus within the scope of the legislative power conferred on the Parliament by s. 51 (xxix.) to make laws with respect to external affairs. (at p504)
Other Powers in s. 51.
26. The Act may also be supported in various aspects by a number of other powers in s. 51, such as trade and commerce with other countries in (i.), defence in (vi.), and measures in (xv.) and matters incidental to the execution of any power vested by this Constitution in the Government of the Commonwealth in (xxxix.). (at p504)
Other Contentions of the States.
27. Apart from contending that the legislation was not authorized by any legislative power, the States also contended that, immediately before federation in 1901, (i) each of the former colonies possessed its own territorial sea; (ii) the territorial sea was included in its territorial limits; (iii) the jurisdiction of the legislature was the same over the territorial sea as over the mainland; (iv) the Crown in right of the colony owned the seabed and subsoil of the territorial sea, just as it owned the land, where not otherwise appropriate. (at p504)
28. They argued that, on federation, the colonies brought with them their land and maritime territory. The territorial limits of the Commonwealth, like those of the colonies, included the territorial sea. The Commonwealth Executive, Legislature and Judiciary possessed the same powers in respect of the maritime territory as in respect of the land territory. (at p504)
29. For these propositions, the States relied on Robtelmes v. Brenan (1906) 4 CLR 395 ; Merchant Service Guild of Australasia v. Archibald Currie &Co. Pty. Ltd. (1908) 5 CLR 737 ; Merchant Service Guild of Australasia v. Commonwealth Steamship Owners Association (1913) 16 CLR 664 ; Kingston v. Gadd (1920) 27 VLR 417 ; Peninsular &Oriental Steam Navigation Co. v. Kingston (1903) AC 471 ; Commissioner of Taxation v. Cam &Sons (1936) 36 SR (NSW) 544 ; D. v. Commissioner of Taxes (1941) QSR 218 ; and William Holyman &Sons Pty. Ltd. v. Eyles (1947) Tas SR 11 . Similar arguments were advanced in regard to the continental shelf. (at p504)
30. Essentially, their claims are based on continuation of rights they had as colonies, together with rights which they would have had under the developing doctrines of the law of the sea. (at p505)
31. I accept the arguments of the States that, before federation, the six colonies, in their progression towards full self government and independence, had exercised some jurisdiction over the adjacent sea, the seabed and its subsoil (in oyster and pearl fisheries and submarine mining). They were becoming involved in international agreements (for example, the International Postal Union and the Convention on Submarine Cables). (at p505)
32. If federation had not occurred, this progression would no doubt have continued. There might now be six international personalities, each with a territorial sea (not necessarily of the same width) and each claiming territorial rights over the seabed and the continental shelf. (at p505)
33. However, this progression towards independence and international personality ceased on federation. Each of the colonies disappeared, their peoples united in a new political entity, "an indissoluble federal Commonwealth" (Commonwealth of Australia Constitution Act). The territorial sea was attached to the entity as the attribute of an international personality along with any potential attributes, such as continental shelves or zones. Even if they had become independent nations before 1901 with the sovereign rights of an international state, on federation they would have lost the territorial seas and other attributes of international personality. (at p505)
34. Similar issues were raised and decided between the Provinces and the Government of Canada (Reference Re Ownership of Off-Shore Mineral Rights (1967) SCR 792; (1967) 65 DLR (2d) 353 ) and between the States and the Government of the United States of America (United States v. Texas (1950) 339 US 707 (94 Law Ed 1221) , United States v. Louisiana (1950) 339 US 699 (94 Law Ed 1216) , United States v. California (1947) 332 US 19 (91 Law Ed 1889) , United States v. Maine (1975) 420 US 515 (43 Law Ed 2d 363) ). The contentions of both the Provinces and the States were rejected in favour of the federal Governments. (at p505)
35. Contentions similar to those of the plaintiffs, and the English history of the law of the sea (including the consideration of Reg. v. Keyn (1876) 2 Ex D 63 ) were dealt with carefully by the Honourable Albert B. Maris in the U.S. Supreme Court Special Master's Report, which was adopted by that Court in United States v. Maine (1975) 420 US 515 (43 Law Ed 2d 363) . This report showed that the contentions of the States of the United States were groundless, and its reasoning is applicable here. In Australia, similar conclusions have been reached by individual judges (see Bonser v. La Macchia (1969) 122 CLR 177 and Reg. v. Bull (1974) 131 CLR 203 ). (at p506)
36. The States have no international personality, no capacity to negotiate or enter into treaties, no power to exchange or send representatives to other international persons and no right to deal with other countries, through agents or otherwise. Their claims to international personality or to sovereignty are groundless (see Bonser v. La Macchia (1969) 122 CLR 177 ). (at p506)
37. The area of the territorial sea is tens of thousands of square kilometres. The area of the disputed submarine lands and subsoil is millions of square kilometres. Their resources are probably worth thousands of billions of dollars. They belong to the nation not to the States. The rights over them are vested in and exercisable by the Government of Australia on behalf of all the people of Australia. (at p506)
38. The Seas and Submerged Lands Act 1973 is valid. The suits should be dismissed. (at p506)
Orders
Judgment for the defendant with costs.
Order that the question be answered as follows: Is the Seas and Submerged Lands Act 1973 a valid law of the Commonwealth?
Answer: Yes.
(HIGH COURT OF AUSTRALIA.)THE STATE OF NEW SOUTH WALES PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT. THE STATE OF VICTORIA PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT. THE STATE OF QUEENSLAND PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT. THE STATE OF SOUTH AUSTRALIA PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT. THE STATE OF WESTERN AUSTRALIA PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT. THE STATE OF TASMANIA PLAINTIFF;
ANDTHE COMMONWEALTH OF AUSTRALIA DEFENDANT.
Cases Citing This Decision
156
Commonwealth of Australia v Yunupingu
[2025] HCA 6
Davis v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs
[2023] HCA 10
Chetcuti v Commonwealth of Australia
[2020] HCA 42
Cases Cited
8
Statutory Material Cited
0
Williams v The King [No 2]
[1934] HCA 19
Bonser v La Macchia
[1969] HCA 31
R v Burgess; ex parte Henry
[1936] HCA 52
Cited Sections